United States District Court, C.D. Illinois
MICHAEL S. WILSON, Plaintiff,
LISA MADIGAN, ASSISTANT ATTORNEY GENERAL MARK MARLOTT, MAYOR JIM ARDIS, PEORIA COUNTY DEPARTMENT OF HUMAN SERVICES, JUDGE LISA WILSON, CIRCUIT CLERK ROBERT SPEARS, PEORIA COUNTY STATE'S ATTORNEY OFFICE, APRIL SUE KRIGNER, Defendants.
MERIT REVIEW OPINION
MICHAEL M. MIHM, District Judge.
Plaintiff, proceeding pro se and currently incarcerated in Pinckneyville Correctional Center, pursues claims arising from Defendants' alleged refusal to honor or enforce a state court order allowing Plaintiff to correspond with his four-year-old son. The case is before the Court for a merit review pursuant to 28 U.S.C. § 1915A. In reviewing the Complaint, the Court accepts the factual allegations as true, liberally construing them in Plaintiff's favor. Turley v. Rednour , 729 F.3d 645, 649 (7th Cir. 2013). The allegations are taken from the Complaint and its attachments.
Plaintiff has a four-year-old son, Antonio Dean Krigner-Wilson, whose mother is Defendant April Sue Krigner ("April"). In 2010, April filed a state court action seeking an order of protection. Krigner on behalf of Krigner-Wilson, a minor v. Michael Wilson, 10-OP-1119 (http://justice.peoriacouinty.org, family case records)(last visited 8/12/14). An order of protection was entered against Plaintiff on November 12, 2010, (Plenary Order attached to Complaint, d/e 1-3, p. 44), but April was permitted to take Antonio to Plaintiff's place of incarceration for visits and to send pictures of Antonio to Plaintiff. Plaintiff was also permitted to "send letters and cards to Petitioner on behalf of the minor but not to use this as a means to harass or abuse the Petitioner." (1/12/11 Order, attached to Complaint, d/e 1-3, p. 44.) The order was later modified or clarified to state that April was not required to take Antonio to the prison for visits and also "does not have to reveal her address to him (Michael). Michael is allowed to write letters/cards to the child at 2706 West Hayes, Peoria, Illinois." (6/15/11 Order, attached to Complaint, d/e 1-4, p. 30).
The exhibits attached to the Complaint reflect that April moved away from the 2706 Hayes address at some point, providing no forwarding address and leaving Plaintiff no way to send letters to Antonio. (d/e 1-4, pp. 17-18.)
Plaintiff tried to petition the state court for an emergency hearing to obtain April's address, but the petition was denied because April could not be served and Plaintiff had not appeared for the hearing. (6/18/12 Order, attached to Complaint, 1-10, p. 71.) Plaintiff's absence at the hearing was not his fault: Plaintiff was incarcerated at the time and for reasons not clear he was not transported to the hearing.
Also in 2010, Defendant Mark Marlott, an Illinois Assistant Attorney General, prosecuted a child support case against Plaintiff on behalf of April and the Illinois Department of Healthcare and Family Services. (6/24/10 Complaint for Support, attached to Complaint, d/e 1-2, p. 6.) Because Plaintiff was incarcerated, no support was ordered, but that ruling will be reconsidered after Plaintiff is released and employed. (8/3/10 Order, attached to Complaint, d/e 1-2, p. 12.) According to the docket, the child support case is set for a status call on September 18, 2014. Krigner v. Wilson, 10-F-00615, (http://justice.peoriacouinty.org, family case records)(last visited 8/12/14).
Plaintiff is currently pursuing a lawsuit in the Southern District of Illinois, alleging that his inability to access the prison law library prevented him from timely challenging April's violation of the order allowing Plaintiff to send letters to Antonio. He also alleges that the Warden refused to writ Plaintiff to the hearing on his emergency petition, resulting in the dismissal of his petition, which effectively allowed April to abscond with Antonio. Wilson v. Gaetz, 14-cv-00071 (S.D. Ill.).
Plaintiff contends that Defendants have refused to provide or locate April's current address and that their actions have allowed April to abscond with Antonio in violation of the state court order allowing Plaintiff to write to Antonio. Plaintiff seeks money damages and an order directing Defendants to pay the cost of locating Antonio, among other relief.
Plaintiff has an arguable constitutional right to associate with his son, subject to the legitimate concerns of the prison and the well-being of Plaintiff's son. See, e.g., Overton v. Bazzetta, 539 U.S. 126, 131 (2003)(recognizing some right of association survives prison); Arsberry v. Illinois, 244 F.3d 558, 565 (7th Cir. 2001)("It is conceivable (no stronger statement is possible in the current state of the case law) that the constitutional concept of liberty may encompass a limited right to make or receive prison visits involving family members."); Mayo v. Lane, 867 F.2d 374, 375 (7th Cir. 1989)(claim that "natural liberty includes a right of association with members of her family, such as grandnephew" in prison is "not a frivolous argument.").
However, a federal district court like this one cannot intervene in this particular situation for several reasons.
First, Plaintiff's claim against April is based on state law, for violating the state court order and/or for committing some kind of state tort by interfering with Plaintiff's relationship with Antonio. See Lloyd v. Loeffler, 694 F.2d 489, 491 (7th Cir. 1982)(interference with custody right stated tort claim under Wisconsin law cognizable in federal court on diversity grounds). Diversity jurisdiction would need to be present for a federal court to hear this state claim, 28 U.S.C. Section 1332(a), meaning that Plaintiff and April would need to be citizens of different states. April's last known address was in Peoria, Illinois, so diversity jurisdiction has not been established. See Lloyd v. Loeffler, 694 F.2d 489, 491 (7th Cir. 1982)(remarking in dicta that "[p]robably the last domicile of the fugitive before he fled should be his domicile for diversity purposes.") Further, whether April is in violation of the state court order is an issue for the state court. If Plaintiff seeks to enforce the state court order he must do so in the state court proceedings. If he seeks reconsideration of the state court's dismissal of his emergency petition, he must do so in the state court proceedings.
Second, the other Defendants cannot be sued on these allegations. Judge Wilson is protected by absolute judicial immunity from civil lawsuits arising from her actions or inactions as a county judge. Polzin v. Gage, 636 F.3d 834, 838 (7th Cir. 2011)("A judge has absolute immunity for any judicial actions unless the judge acted in the absence of all jurisdiction."). Similarly, Illinois Assistant Attorney General Mark Marlott is protected by absolute prosecutorial immunity for pursuing the child support action, as is Illinois Attorney General Lisa Madigan. See Parker v. Lyons, 2014 WL 3045807 (7th Cir. ...