United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER 
Milton I. Shadur, Senior United States District Judge.
Just short of four decades have elapsed since Christopher Hicks ("Hicks") was appallingly returned to the custody of his adoptive mother Gloria Jemmison ("Jemmison") despite the unquestioned and serious child abuse that he had sustained at her hands and that had led to Department's originally ousting her from such custody only a few months earlier. And even more appallingly, that pattern of grievous physical abuse not only resumed immediately but actually worsened during the next few years -- abuse that was fully documented and well known to Department and its cohorts -- until Jemmison's custody of Hicks was finally revoked permanently. According to Hicks, his long-repressed memory of that deplorable situation has emerged from the depths of despond only recently, and he seeks recompense for that horrific experience through this 42 U.S.C. § 1983 ("Section 1983") action, coupled with related state law claims under the auspices of the supplemental jurisdiction provision of 28 U.S.C. § 1367.
At this point the most recent reiteration of Hicks' claims is embodied in his TAC,  and the two sets of defendants have taken aim at that pleading by separate motions. Because the motion by Department and its cohorts advanced a "Gotcha!" type of argument of qualified immunity that sought to rest on a similar child abuse case that rejected legal responsibility on the part of a Wisconsin state agency (DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189 (1989)), this Court's immediate response was to focus defense counsel's attention on the obvious proposition that it was totally improper to judge defendants' conduct during the 1970s and very early 1980s by a standard not announced by the United States Supreme Court until a decade later -- a kind of "post hoc ergo propter hoc" approach.
Indeed, startlingly enough, it was DeShaney itself -- in both the majority opinion authored by then Chief Justice Rehnquist and the powerful dissent voiced by Justice Brennan for himself and two other justices -- that pointed the way toward upholding rather than rejecting Hicks' TAC here: Each of those opinions expressly adverted to Estelle v. Gamble, 429 U.S. 97 (1976) and the later (and conceptually parallel) decision in Youngberg v. Romeo, 457 U.S. 307 (1982) as exemplifying the law as of the time that is relevant for evaluation of the litigants' rights and duties in this case. Because that reasoning is so dramatically demonstrated by those two opinions, which led to disagreement within the Supreme Court in DeShaney but both of which really call for upholding Hicks' claim here, this opinion will quote extensively from the Justices' respective expositions (omitting internal citations, quotation marks and footnotes).
First, then, here is a slightly (but not substantively) bobtailed reproduction of the now-relevant portions of Chief Justice Rehnquist's statement in DeShaney, 489 U.S. 198-200 (emphasis added):
In Estelle v. Gamble, 429 U.S. 97 (1976), we recognized that the Eighth Amendment's prohibition against cruel and unusual punishment, made applicable to the States through the Fourteenth Amendment's Due Process Clause, requires the State to provide adequate medical care to incarcerated prisoners. We reasoned that, because the prisoner is unable "by reason of the deprivation of his liberty [to] care for himself, " it is only "just" that the State be required to care for him.
In Youngberg v. Romeo, 457 U.S. 307 (1982), we extended this analysis beyond the Eighth Amendment setting, holding that the substantive component of the Fourteenth Amendment's Due Process Clause, requires the State to provide involuntarily committed mental patients with such services as are necessary to ensure their "reasonable safety" from themselves and others. As we explained: "If it is cruel and unusual punishment to hold convicted criminals in unsafe conditions, it must be unconstitutional [under the Due Process Clause] to confine the involuntarily committed -- who may not be punished at all -- in unsafe conditions."
But these cases, . . . [t]aken together, . . . stand only for the proposition that, when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being. See Youngberg v. Romeo, supra, at 317 ("When a person is institutionalized -- and wholly dependent on the State[, ] . . . a duty to provide certain services and care does exist"). The rationale for this principle is simple enough: when the State, by the affirmative exercise of its power, so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs -- e.g., food, clothing, shelter, medical care, and reasonable safety -- it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause. See Estelle v. Gamble, supra, at 103-104; Youngberg v. Romeo, supra, at 315-316. The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf. See Estelle v. Gamble, supra, at 429 U.S. 103 ("An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met"). In the substantive due process analysis, it is the State's affirmative act of restraining the individual's freedom to act on his own behalf -- through incarceration, institutionalization, or other similar restraint of personal liberty -- which is the "deprivation of liberty" triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interests against harms inflicted by other means.
And here is the identical lesson that Justice Brennan drew in DeShaney, 489 U.S. at 205 from Estelle and its later compatriot Youngberg:
Both Estelle v. Gamble, 429 U.S. 97 (1976), and Youngberg v. Romeo, 457 U.S. 307 (1982), began by emphasizing that the States had confined J. W. Gamble to prison and Nicholas Romeo to a psychiatric hospital. This initial action rendered these people helpless to help themselves or to seek help from persons unconnected to the government. See Estelle, supra, at 104 ("[I]t is but just that the public be required to care for the prisoner, who cannot by reason of the deprivation of his liberty, care for himself");, at 104 ("[I]t is but just that the public be required to care for the prisoner, who cannot by reason of the deprivation of his liberty, care for himself"); Youngberg, supra, at 317 ("When a person is institutionalized -- and wholly dependent on the State -- it is conceded by petitioners that a duty to provide certain services and care does exist"). Cases from the lower courts also recognize that a State's actions can be decisive in assessing the constitutional significance of subsequent inaction. For these purposes, moreover, actual physical restraint is not the only state action that has been considered relevant.
Indeed, Chief Justice Rehnquist's majority opinion recognized that other courts have found a parallel between the teaching of Estelle and Youngberg and the situation posed for consideration in this case. Here is the relevant portion of n.9 to that opinion (489 U.S. at 201, citations omitted):
Had the state by the affirmative exercise of its power removed Joshua from free society and placed him in a foster home operated by its agents, we might have a situation sufficiently analogous to incarceration or institutionalization to give rise to an affirmative duty to protect. Indeed, several Courts of Appeals have held, by analogy to Estelle and Youngberg, that the State may be held liable under the Due Process Clause for failing to protect children in foster homes from mistreatment at the hands of their foster parents.
Although the Supreme Court majority did not opine "on the validity of this analogy, " this Court holds that defendants can take no comfort from any attempted distinction, at the time relevant for judging the availability or unavailability of qualified immunity in the fact-bound antecedents to DeShaney, between foster parents and the appallingly non-maternal "mother" Jemmison.
It is important to note in that respect how the Illinois Abused and Neglected Child Reporting Act at 325 ILCS 5/2 defines ...