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Cooney v. Casady

October 28, 2010


The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge


In this case, plaintiff Deborah Orlando Cooney ("Cooney" or "plaintiff") filed a two-count complaint against two attorneys, defendants Rhonda Casady and Andrew Sosnowski, who represented the Department of Children and Family Services ("DCFS") during plaintiff's administrative appeal relating to the custody of her children. Plaintiff alleges that Casady and Sosnowski conspired with court reporter Leslie Magnabosco, who plaintiff claims altered, at the direction of Casady and Sosnowski, the official transcripts of those proceedings. Count I alleges that the defendants conspired to deprive plaintiff of her due process rights under 42 U.S.C. § 1983. Count II alleges a state law claim for intentional infliction of emotional distress. Defendants have now moved for summary judgment. For the reasons that follow, that motion is granted.

I. Background

After plaintiff was awarded sole custody of her two children, her ex-husband filed a petition for change of custody. Defs.' Statement of Undisputed Material Fact ("Defs.' SF") ¶¶ 1, 2. After a therapist treating plaintiff's children reported abuse to DCFS, DCFS instituted an administrative proceeding against plaintiff. Id. ¶ 4. The DCFS investigator assigned to plaintiff's case indicated a finding of mental injury against plaintiff. Id. ¶ 6. Plaintiff then filed an administrative appeal of the DCFS indicated finding. Id. ¶ 7. Defendants Casady and Sosnowski represented DCFS during the administrative appeal. Id. ¶ 9. Plaintiff's appeal ultimately was assigned to Administrative Law Judge ("ALJ") Daniel Baechle. Id. ¶ 10. The proceedings in plaintiff's appeal were recorded by ALJ Baechle on a small microcassette tape recorder. Id. ¶ 11. Plaintiff retained a private court reporter to transcribe the appeal hearing (the "Fishman transcripts"). Id. ¶ 13. Plaintiff's administrative appeal was denied by DCFS, based upon the findings and recommendation of Judge Baechle. Id. ¶ 14. After the denial of plaintiff's administrative appeal, plaintiff filed an action for administrative review in the Circuit Court of Cook County. Id. ¶ 15.

At the time she transcribed plaintiff's appeal hearing, Magnabosco was an independent contractor working for Benedia Certified Court Reporting. Pl.'s Statement of Additional Fact ("Pl.'s SAF") ¶ 8. After the administrative review was filed by plaintiff, Magnabosco, who was not a certified shorthand reporter, prepared transcripts (the "Magnabosco transcripts") of the appeal by listening to the recordings of the hearing on the microcassettes. Defs.' SF ¶ 16.

II. Discussion

Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Once the moving party shows that there is no genuine issue of material fact, the burden of proof shifts to the nonmoving party to designate specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

To establish a § 1983 conspiracy, plaintiff must prove that: "(1) a state official and private individual(s) reached an understanding to deprive the plaintiff of [her] constitutional rights, . . . and (2) those individual(s) were willful participants in joint activity with the State or its agents." Fries v. Helsper, 146 F.3d 452, 457 (7th Cir. 1998). Plaintiff's theory is that the three defendants conspired to alter the official record from the appeal hearing in order to increase the chances that the DCFS finding that plaintiff had abused her children would be sustained. Defendants argue that plaintiff's theory is based solely on speculation, and no reasonable jury could conclude, based on differences between the Magnabosco transcript and the Fishman transcript (the transcript plaintiff procured), that the defendants conspired to deprive her of her due process rights. I agree.

When a plaintiff claims that defendants conspired to violate her civil rights, she must proffer specific facts tending to show that a conspiracy existed to survive a summary judgment motion; conclusory allegations will not suffice. Stagman v. Ryan, 176 F.3d 986, 1003 (7th Cir. 1999). While a conspiracy may be inferred through circumstantial evidence, the circumstantial evidence must be "sufficient to permit a reasonable jury to conclude that a meeting of the minds had occurred and that the parties had an understanding to achieve the conspiracy's objectives." Green v. Benden, 281 F.3d 661, 665-66 (7th Cir. 2002).

Here, plaintiff has put forward no direct or sufficient circumstantial evidence of a conspiracy between attorneys Casady and Sosnowski, and the court reporter, Magnabosco. Defendants have put forward undisputed evidence that neither Casady nor Sosnowski ever met Magnabosco, ever spoke to Magnabosco, or had any kind of communication with her whatsoever. Plaintiff's assertions that Casady and Sosnowski could have known Magnabosco's identity and contacted her is not supported by any evidence that they did so.

In an attempt to bolster her claim of conspiracy, plaintiff asserts that certain differences between Magnabosco's transcripts and the Fishman transcripts support an inference that the three defendants conspired to alter the official transcripts. Plaintiff posits that because Magnabosco herself was not a medical professional (and thus would not have known which parts of the testimony to alter), she must have been coached by Casady and Sosnowski. Plaintiff argues that a jury should decide if discrepancies between the two transcripts were the result of human errors or evidenced a conspiracy between the three defendants.

Having reviewed all portions of the two transcripts highlighted by plaintiff in Exhibit 3,*fn1 I conclude that the transcript differences are not sufficient evidence from which a reasonable jury could find a conspiracy between the three defendants. First of all, I must acknowledge the different circumstances surrounding the two transcriptions. On the one hand, the court reporter transcribing the Fishman transcripts was present during the hearing. Conversely, Magnabosco, who was not a certified shorthand reporter, transcribed the hearing by listening to the microcassette recordings. Plaintiff points to many instances (15 out of the 30 discrepancies she identifies in Exhibit 3) in which Magnabosco indicated that certain portions of testimony were "inaudible," which is entirely reasonable given the circumstances under which she was providing transcription. Plaintiff has provided no evidence that these sections of the tapes were, in fact, discernable.*fn2 Although plaintiff points to instances in the Magnabosco transcripts where she claims testimony was intentionally left out, in many cases the missing testimony was provided by the witness on a different page of the transcript. Likewise, I agree with defendants that Fishman's transcripts contain testimony, not present in Magnabosco's transcripts, which is prejudicial to plaintiff. Plaintiff's suggestion that this too was part of the conspiracy strains all credibility and is simply not believable.

Plaintiff makes much of the fact that, in transcribing Casady's opening statement, Magnabosco's transcript has Casady describing a "physical injury based on the [son's] factitious legions" while the Fishman transcript reports Casady describing "physical injury based on the [son's] fictitious lesions." Pl.'s Ex. 3 (emphasis added). According to plaintiff, Magnabosco changed "fictitious" to "factitious" (a medical term meaning self-induced) to bolster the case against her. This argument is not credible. I note the obvious fact that the words sound alike, and Magnabosco had no background in medical terminology. Further, it seems most likely that Magnabosco was correct in reporting "factitious" as Casady was prosecuting a case in which the DCFS contended that lesions on plaintiff's son were self-induced. These two words sound so similar that no reasonable jury could conclude that this alleged transcription error is evidence of a conspiracy to deprive plaintiff of her constitutional rights.

Taking all these discrepancies together (and I have reviewed all of those listed in Exhibit 3 in detail), I cannot conclude that these discrepancies are sufficient to prove a conspiracy, especially given the circumstances under which the Magnabosco transcripts were created (via microcassette tapes) and, most importantly, when there is no evidence that the three defendants ever met or communicated with each other. Based on this ...

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