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Johnnie L. Bankston v. Madeline Mclauchlan

November 18, 2011

JOHNNIE L. BANKSTON, PLAINTIFF,
v.
MADELINE MCLAUCHLAN, JANE WALLER ANDERSON, DONALD D. BERNARDI AND KEVIN P. FITZGERALD DEFENDANTS.



The opinion of the court was delivered by: Michael M. Mihm U.S. District Court Judge

E-FILED

Tuesday, 22 November, 2011 11:28:28 AM

Clerk, U.S. District Court, ILCD

ORDER

Before the Court are Defendants' Motions to Dismiss the Plaintiff's Complaint [#12 and #15]. For the following reasons, the Motions are GRANTED and the cause of action against each of the moving Defendants is DISMISSED with prejudice. Defendant Jane Waller Anderson has not been served at this time and no motion is pending related to this Defendant. No action is taken by the Court with respect to this Defendant at this time.

BACKGROUND

On July 22, 2011, Plaintiff Johnnie L. Bankston ("Bankston" or "Plaintiff") filed a Complaint against Defendants Assistant State's Attorney Madline McLauchlan ("ASA McLauchlan"), Jane Waller Anderson, Judge Donald D. Bernardi (retired) ("Judge Bernardi"), and Judge Kevin Fitzgerald ("Judge Fitzgerald") alleging that Defendants violated his rights under 42 U.S.C. § 1983. Plaintiff's allegations against the Defendant Judges Bernardi and Fitzgerald appear to arise from their actions in a McLean County Circuit Court case involving Plaintiff's parental rights. Bankston's action against ASA McLauchlan apparently arises from her action of adding Plaintiff as a party in the child custody case. Finally, the claims against non-moving Defendant Ms. Jane Waller Anderson, a social worker, are less clear but based on the Complaint she apparently stated at some point in the underlying child custody case that the Plaintiff failed to complete some programs or services. However, Defendant Anderson has not been served and there is no motion pending related to her at this time. In the end, Bankston requests this Court to reinstate his parental rights and award damages.

On August 29, 20111, Judge Bernardi and Judge Fitzgerald filed a Motion to Dismiss asserting, among other things, that: (1) Plaintiff failed to state a claim upon which relief can be granted, (2) that this Court lacks jurisdiction to review the State Court Decision, (3) Plaintiff's request for injunctive relief is barred by the Eleventh Amendment, and (4) that the Judges are entitled to judicial immunity. On September 12, 2011, ASA McLauchlan also filed a Motion to Dismiss contending that dismissal against her is appropriate because: (1) Plaintiff has failed to state a claim, (2) the claims against her fail due to statute of limitations, (3) she is entitled to absolute immunity, and (4) this Court lacks jurisdiction to review the Illinois state court decision under the Rooker-Feldman doctrine.

Coupled with their Motion, the Defendant Judges submitted an order issued by the Appellate Court of Illinois -Fourth District involving the appeal of Bankston of the McLean County Circuit Court decision. The order provides additional background regarding the underlying child custody case that is helpful in putting Bankston's claim in contexts; however, as illustrated below these facts are not ultimately determinative of the instant Motions. The Seventh Circuit provides that the Court may take judicial notice of the public record without converting Defendant's Motion to motion for summary judgment and the Court does so for the purpose noted above. Henson v. CSC Credit Service, 29 F.3d 280, 284 (7th Cir. 1994). The Order provides that in May 2005, the Illinois Department of Children and Family Services took a child (ultimately shown to be the child of Bankston) into protective custody from the care of his mother. In re: B.B., a Minor, The People of State of Illinois v. Johnnie Bankston, No. 40-09-0899 (Ill.App.Ct. April 6, 2010). In June 2005, Bankston was ordered to submit to a paternity test and in May 2006, Bankston's paternity of the child was established. Id. In April 2008, the State filed a petition in the Circuit Court of McLean County to terminate Bankston's parental rights on the basis of depravity and repeated incarceration. Id. While other hearings occurred in Bankston's state case, ultimately on October 28, 2009, the Circuit Court found that Bankston was an unfit parent on the basis alleged in the petition. Id. Bankston appealed to the Appellate Court of Illinois - Fourth District arguing that his case should be overturned because he was denied his right to counsel. Id. The Appellate Court rejected his argument and affirmed the lower court. Id. Parenthetically, with only a brief exception when he was released on parole, Bankston was an inmate in the custody of the Illinois Department of Corrections during his state court proceedings. Id.

Plaintiff was given notice of the case dispostive motions, provided the time frame for a response and informed of the consequences of failing to respond. As of the date of this Order, Plaintiff has failed to respond. This Order follows.

STANDARD OF REVIEW

In resolving a motion to dismiss, this Court must consider all well-pled facts as true and must draw all inferences in favor of the non-moving party. Bontkowski v. First Nat'l Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993). In ruling on a motion to dismiss, Courts consider whether relief is possible under any set of facts that could be established consistent with the allegations in the complaint. Conley v. Gibson, 355 U.S. 41, 45--46 (1957). This Court will dismiss a claim only if it is beyond doubt that no set of facts would entitle the Plaintiff to relief. Chaney v. Suburban Bus. Div., 52 F.3d 623, 627 (7th Cir. 1995); Venture Associates. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 432 (7th Cir. 1993). In the instant matter, the Court recognizes that Plaintiff is pro se and in reviewing his complaint the Court should hold it "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972).

DISCUSSION

As an initial matter, Local Rule 7.1(B)(2) provides that if no response is timely filed, the Court will presume there is no opposition to the motion and may rule without further notice to the parties. Plaintiff was given adequate notice of the Defendants' dispositive motions and informed of the consequences of failing to respond. Despite this notice, Plaintiff has failed to present any opposition to the Court. As permitted by the Local Rules, the Court shall ...


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