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Van Dyke v. Barnes

United States District Court, N.D. Illinois, Eastern Division

January 12, 2015

DAWN BARNES; LINDA FULTZ; and MELISSA JOHNSON, individually and as employees of LUTHERAN SOCIAL SERVICES, Defendants.


JOHN Z. LEE, District Judge.

Before the Court are two motions to dismiss Plaintiff Christel Van Dyke's Third Amended Complaint. Defendants Melissa Johnson and Linda Fultz move to dismiss Plaintiff's Third Amended Complaint for failure to properly effectuate service under Federal Rule of Civil Procedure ("Rule") 4(e) and for failure to state a claim under Rule 12(b)(6). Johnson and Fultz argue that Plaintiff has failed to properly serve them by leaving service papers with a receptionist not authorized to receive service. Johnson and Fultz also argue that Van Dyke's procedural due process claim falters because she fails to identify a constitutionally protected interest. Defendant Dawn Barnes, the Child Protection Investigator for the Illinois Department of Children and Family Services ("DCFS"), also moves to dismiss Plaintiff's Third Amended Complaint for failure to state a claim. Barnes argues that Van Dyke lacks a constitutionally-protected interest in a foster child relationship sufficient to sustain a due process claim and that Van Dyke's claim for First Amendment retaliation is based on only her private speech, not protected public speech, and therefore should be dismissed.

Plaintiff opposes both motions. She argues generally that she has a protected property interest in the foster child relationship and the benefits that arise under it are sufficient to assert a procedural due process claim. She also argues that she states a valid First Amendment retaliation claim because the speech she identifies touches on a matter of public concern, namely, foster child welfare. For the reasons provided here, the Court denies the motion to dismiss Van Dyke's Third Amended Complaint for improper service, grants the motions to dismiss Count I for procedural due process, and denies Barnes' motion to dismiss Count III for First Amendment retaliation.

I. Factual & Procedural Background[1]

The main factual allegations in this case are captured in the Court's previous memorandum opinion and order. Van Dyke v. Ill. Dep't of Children & Family Serv., No. 13 C 5971, 2014 WL 2134580, at **1-3 (N.D. Ill. May 22, 2014). The Court will iterate them briefly, as the allegations of Van Dyke's Third Amended Complaint largely mirror those of her Second Amended Complaint.

According to Plaintiff, Van Dyke is the maternal grandmother of K.C., a four year-old minor who was three years old at the time of the events in question. 3d Am. Compl. ¶ 5. In 2011, DCFS temporarily gave Van Dyke custody of K.C. as a foster child. Id. ¶ 6. A DCFS Guardianship Administrator was appointed guardianship over K.C. after he was adjudicated a neglected minor in 2012. Van Dyke, 2014 WL 2134580, at *1. K.C.'s biological father, R.C., was allowed to visit K.C., despite being frequently incarcerated for drug-related offenses and being physically abusive towards B.V., K.C.'s biological mother. 3d Am. Compl. ¶ 13.

Defendants increased R.C.'s visits with K.C. with inadequate supervision. Id. ¶ 13. R.C.'s increased visits led K.C. to report physically and sexually inappropriate acts committed by R.C.; after these visits, K.C.'s anxiety increased and his behavior worsened. Id. ¶¶ 13-14. Van Dyke attempted to remedy these problems but met with resistance from Defendants. Id. ¶ 15. Van Dyke reported R.C.'s physically and sexually inappropriate acts to Defendants, and getting nowhere, reported the acts to the DCFS abuse hotline and the police. Id. ¶ 16. Van Dyke then filed a motion to suspend R.C.'s visitation rights in juvenile court. Id. ¶ 17; Van Dyke, 2014 WL 2134580, at *2. The administrative law judge reviewed Van Dyke's allegations of sexual and physical abuse and found them to be "without merit." Id., at *2.

As a result of Van Dyke's motion, as alleged in the Third Amended Complaint, Johnson directed Fultz to remove K.C. from Van Dyke's home without the 14-day notice required under state law. See 3d Am. Compl. ¶ 18. On February 26, 2013, Fultz, accompanied by police officers and Barnes, gained access to Van Dyke's home under the false pretenses of conducting a wellness check. Id. Van Dyke alleges that Barnes lied to the police by claiming that Van Dyke received notice in court that K.C.'s placement would be changing. Id. After the police officers, Barnes, and Fultz gained access to Van Dyke's home, they lodged allegedly false allegations of abuse against Van Dyke and forcibly removed K.C. Id.

After K.C.'s removal, Van Dyke was allowed only limited visits with him. Id. ¶ 20. Johnson and Fultz brought K.C. to Van Dyke's house without notice, cancelled scheduled visits when Van Dyke was not at home, disallowed visits on Mother's Day while allowing R.C. visits on Father's Day, and barred Van Dyke from speaking to K.C. on the phone. Id. During Van Dyke's limited visits, she noticed possible signs of continued physical abuse of K.C., including cuts on his wrist, mosquito bites, blood clots under his fingernails, a disheveled and dirty appearance, unexplained weight loss, a depressive and reserved demeanor, and apparent cigarette burns on his body. Id. ¶ 21. Defendants allegedly have not responded to Van Dyke's reports of this suspected abuse. Id. ¶ 22.

Further court and administrative action followed. Van Dyke filed an emergency petition in the Winnebago County Juvenile Court on March 12, 2013, seeking an order to compel DCFS to place K.C. back in her home. Van Dyke, 2014 WL 2134580, at *2. The Winnebago County Juvenile Court held a hearing and denied Van Dyke's petition. Id. After this denial, Van Dyke requested a Clinical Placement Review for K.C. Id. It was determined that it remained in K.C.'s best interest not to be returned to Van Dyke's home. Id. Van Dyke appealed this determination, and the appeals hearing was completed on June 24, 2013. Id. On July 11, 2013, the administrative law judge recommended denying Van Dyke's appeal and found that she was unwilling to cooperate with DCFS and the juvenile court in furthering the goal of returning K.C. to his biological parents and that her allegations of physical and sexual abuse against R.C. were "not believable or supported by any facts" and "misguided, vitriolic attempts to impede [R.C.'s] service plan and the Juvenile Court's reunification goal." Id. (quoting administrative law judge's opinion). On July 27, 2013, DCFS adopted the administrative law judge's recommendation and issued a final administrative decision denying Van Dyke's appeal for the return of K.C. to her home. Id.

Van Dyke now alleges she was extremely fearful to report her suspicions of abuse to others because her previous efforts to do so resulted in K.C. being removed from her care. See 3d Am. Compl. ¶ 23. Van Dyke alleges that, as a result of her ongoing and most recent reports, Johnson has eliminated phone communication with K.C. and severely limited Van Dyke's contact with K.C. Id.

This Court previously dismissed Van Dyke's substantive due process and Fourth Amendment unreasonable seizure claims. See Van Dyke, 2014 WL 2134580, at **4-5. The Court declined to exercise supplemental jurisdiction regarding the request to review the administrative denial of Van Dyke's DCFS petition. See id., at *8. The Court also denied Van Dyke's motion for a temporary restraining order, preliminary injunction, and appointment of a special master. Id. The Court allowed Van Dyke to proceed with her claim for unreasonable search against Barnes, Fultz, and Johnson. Id., at *9. Van Dyke has filed a Third Amended Complaint, adding claims under 42 U.S.C. § 1983 for violations of procedural due process and First Amendment retaliation. See generally 3d Am. Compl. ¶¶ 25-34, 40-44.

II. Standard of Review

To survive a motion to dismiss pursuant to Rule 12(b)(6), the complaint must "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The factual allegations in the complaint must at least "raise a right to relief above the speculative level." Bell Atl. Corp., 550 U.S. at 555. In reviewing the United States' motion to dismiss, the Court must accept as true all well-pleaded allegations in the complaint and draw all possible inferences in the plaintiff's ...

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